Florida Senate - 2016              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 372
       Proposed Committee Substitute by the Committee on Appropriations
       (Appropriations Subcommittee on General Government)
    1                        A bill to be entitled                      
    2         An act relating to administrative procedures; amending
    3         s. 120.54, F.S.; providing procedures for agencies to
    4         follow when initiating rulemaking after certain public
    5         hearings; limiting reliance upon an unadopted rule in
    6         certain circumstances; amending s. 120.55, F.S.;
    7         providing for publication of notices of rule
    8         development and of rules filed for adoption; providing
    9         for additional notice of rule development, proposals,
   10         and adoptions in the Florida Administrative Register;
   11         requiring certain agencies to provide additional e
   12         mail notifications concerning specified rulemaking and
   13         rule development activities; providing that failure to
   14         follow certain provisions does not constitute grounds
   15         to challenge validity of a rule; amending s. 120.56,
   16         F.S.; clarifying language regarding challenges to
   17         rules; specifying the petitioner’s burden of proof in
   18         proposed rule challenges; amending s. 120.57, F.S.;
   19         conforming proceedings that oppose agency action based
   20         on an invalid or unadopted rule to proceedings used
   21         for challenging rules; authorizing the administrative
   22         law judge to make certain findings on the validity of
   23         certain alleged unadopted rules; authorizing a
   24         petitioner to file certain collateral challenges
   25         regarding the validity of a rule; authorizing the
   26         administrative law judge to consolidate proceedings in
   27         such rule challenges; providing that agency action may
   28         not be based on an invalid or unadopted rule; amending
   29         s. 120.68, F.S.; specifying legal authority to file a
   30         petition challenging an agency rule as an invalid
   31         exercise of delegated legislative authority; amending
   32         s. 120.695, F.S.; removing obsolete provisions with
   33         respect to required agency review and designation of
   34         minor violations; requiring agency review and
   35         certification of minor violation rules by a specified
   36         date; requiring minor violation certification for all
   37         rules adopted after a specified date; requiring public
   38         notice; providing applicability; amending s. 120.595,
   39         F.S.; conforming a cross-reference; providing an
   40         effective date.
   42  Be It Enacted by the Legislature of the State of Florida:
   44         Section 1. Paragraph (c) of subsection (7) of section
   45  120.54, Florida Statutes, is amended, and paragraph (d) is added
   46  to that subsection, to read:
   47         120.54 Rulemaking.—
   49         (c) If the agency does not initiate rulemaking or otherwise
   50  comply with the requested action within 30 days after following
   51  the public hearing provided for in by paragraph (b), if the
   52  agency does not initiate rulemaking or otherwise comply with the
   53  requested action, the agency shall publish in the Florida
   54  Administrative Register a statement of its reasons for not
   55  initiating rulemaking or otherwise complying with the requested
   56  action, and of any changes it will make in the scope or
   57  application of the unadopted rule. The agency shall file the
   58  statement with the committee. The committee shall forward a copy
   59  of the statement to the substantive committee with primary
   60  oversight jurisdiction of the agency in each house of the
   61  Legislature. The committee or the committee with primary
   62  oversight jurisdiction may hold a hearing directed to the
   63  statement of the agency. The committee holding the hearing may
   64  recommend to the Legislature the introduction of legislation
   65  making the rule a statutory standard or limiting or otherwise
   66  modifying the authority of the agency.
   67         (d) If the agency initiates rulemaking after the public
   68  hearing provided for in paragraph (b), the agency shall publish
   69  a notice of rule development within 30 days after the hearing
   70  and file a notice of proposed rule within 180 days after the
   71  notice of rule development unless, before the 180th day, the
   72  agency publishes in the Florida Administrative Register a
   73  statement explaining its reasons for not having filed the
   74  notice. If rulemaking is initiated under this paragraph, the
   75  agency may not rely on the unadopted rule unless the agency
   76  publishes in the Florida Administrative Register a statement
   77  explaining why rulemaking under paragraph (1)(a) is not feasible
   78  or practicable until the conclusion of the rulemaking
   79  proceeding.
   80         Section 2. Section 120.55, Florida Statutes, is amended to
   81  read:
   82         120.55 Publication.—
   83         (1) The Department of State shall:
   84         (a)1. Through a continuous revision and publication system,
   85  compile and publish electronically, on a an Internet website
   86  managed by the department, the “Florida Administrative Code.”
   87  The Florida Administrative Code shall contain all rules adopted
   88  by each agency, citing the grant of rulemaking authority and the
   89  specific law implemented pursuant to which each rule was
   90  adopted, all history notes as authorized in s. 120.545(7),
   91  complete indexes to all rules contained in the code, and any
   92  other material required or authorized by law or deemed useful by
   93  the department. The electronic code shall display each rule
   94  chapter currently in effect in browse mode and allow full text
   95  search of the code and each rule chapter. The department may
   96  contract with a publishing firm for a printed publication;
   97  however, the department shall retain responsibility for the code
   98  as provided in this section. The electronic publication shall be
   99  the official compilation of the administrative rules of this
  100  state. The Department of State shall retain the copyright over
  101  the Florida Administrative Code.
  102         2. Rules general in form but applicable to only one school
  103  district, community college district, or county, or a part
  104  thereof, or state university rules relating to internal
  105  personnel or business and finance shall not be published in the
  106  Florida Administrative Code. Exclusion from publication in the
  107  Florida Administrative Code shall not affect the validity or
  108  effectiveness of such rules.
  109         3. At the beginning of the section of the code dealing with
  110  an agency that files copies of its rules with the department,
  111  the department shall publish the address and telephone number of
  112  the executive offices of each agency, the manner by which the
  113  agency indexes its rules, a listing of all rules of that agency
  114  excluded from publication in the code, and a statement as to
  115  where those rules may be inspected.
  116         4. Forms shall not be published in the Florida
  117  Administrative Code; but any form which an agency uses in its
  118  dealings with the public, along with any accompanying
  119  instructions, shall be filed with the committee before it is
  120  used. Any form or instruction which meets the definition of
  121  “rule” provided in s. 120.52 shall be incorporated by reference
  122  into the appropriate rule. The reference shall specifically
  123  state that the form is being incorporated by reference and shall
  124  include the number, title, and effective date of the form and an
  125  explanation of how the form may be obtained. Each form created
  126  by an agency which is incorporated by reference in a rule notice
  127  of which is given under s. 120.54(3)(a) after December 31, 2007,
  128  must clearly display the number, title, and effective date of
  129  the form and the number of the rule in which the form is
  130  incorporated.
  131         5. The department shall allow adopted rules and material
  132  incorporated by reference to be filed in electronic form as
  133  prescribed by department rule. When a rule is filed for adoption
  134  with incorporated material in electronic form, the department’s
  135  publication of the Florida Administrative Code on its Internet
  136  website must contain a hyperlink from the incorporating
  137  reference in the rule directly to that material. The department
  138  may not allow hyperlinks from rules in the Florida
  139  Administrative Code to any material other than that filed with
  140  and maintained by the department, but may allow hyperlinks to
  141  incorporated material maintained by the department from the
  142  adopting agency’s website or other sites.
  143         (b) Electronically publish on a an Internet website managed
  144  by the department a continuous revision and publication entitled
  145  the “Florida Administrative Register,” which shall serve as the
  146  official publication and must contain:
  147         1. All notices required by s. 120.54(2) and (3)(a)
  148  120.54(3)(a), showing the text of all rules proposed for
  149  consideration.
  150         2. All notices of public meetings, hearings, and workshops
  151  conducted in accordance with s. 120.525, including a statement
  152  of the manner in which a copy of the agenda may be obtained.
  153         3. A notice of each request for authorization to amend or
  154  repeal an existing uniform rule or for the adoption of new
  155  uniform rules.
  156         4. Notice of petitions for declaratory statements or
  157  administrative determinations.
  158         5. A summary of each objection to any rule filed by the
  159  Administrative Procedures Committee.
  160         6. A list of rules filed for adoption in the previous 7
  161  days.
  162         7. A list of all rules filed for adoption pending
  163  legislative ratification under s. 120.541(3). A rule shall be
  164  removed from the list once notice of ratification or withdrawal
  165  of the rule is received.
  166         8.6. Any other material required or authorized by law or
  167  deemed useful by the department.
  169  The department may contract with a publishing firm for a printed
  170  publication of the Florida Administrative Register and make
  171  copies available on an annual subscription basis.
  172         (c) Prescribe by rule the style and form required for
  173  rules, notices, and other materials submitted for filing.
  174         (d) Charge each agency using the Florida Administrative
  175  Register a space rate to cover the costs related to the Florida
  176  Administrative Register and the Florida Administrative Code.
  177         (e) Maintain a permanent record of all notices published in
  178  the Florida Administrative Register.
  179         (2) The Florida Administrative Register Internet website
  180  must allow users to:
  181         (a) Search for notices by type, publication date, rule
  182  number, word, subject, and agency.
  183         (b) Search a database that makes available all notices
  184  published on the website for a period of at least 5 years.
  185         (c) Subscribe to an automated e-mail notification of
  186  selected notices to be sent out before or concurrently with
  187  publication of the electronic Florida Administrative Register.
  188  Such notification must include in the text of the e-mail a
  189  summary of the content of each notice.
  190         (d) View agency forms and other materials submitted to the
  191  department in electronic form and incorporated by reference in
  192  proposed rules.
  193         (e) Comment on proposed rules.
  194         (3) Publication of material required by paragraph (1)(b) on
  195  the Florida Administrative Register Internet website does not
  196  preclude publication of such material on an agency’s website or
  197  by other means.
  198         (4) Each agency shall provide copies of its rules upon
  199  request, with citations to the grant of rulemaking authority and
  200  the specific law implemented for each rule.
  201         (5) Each agency that provides an e-mail notification
  202  service to inform licensees or other registered recipients of
  203  notices shall use that service to notify recipients of each
  204  notice required under s. 120.54(2) and (3) and provide Internet
  205  links to the appropriate rule page on the Secretary of State’s
  206  website or Internet links to an agency website that contains the
  207  proposed rule or final rule.
  208         (6)(5) Any publication of a proposed rule promulgated by an
  209  agency, whether published in the Florida Administrative Register
  210  or elsewhere, shall include, along with the rule, the name of
  211  the person or persons originating such rule, the name of the
  212  agency head who approved the rule, and the date upon which the
  213  rule was approved.
  214         (7)(6) Access to the Florida Administrative Register
  215  Internet website and its contents, including the e-mail
  216  notification service, shall be free for the public.
  217         (8)(7)(a) All fees and moneys collected by the Department
  218  of State under this chapter shall be deposited in the Records
  219  Management Trust Fund for the purpose of paying for costs
  220  incurred by the department in carrying out this chapter.
  221         (b) The unencumbered balance in the Records Management
  222  Trust Fund for fees collected pursuant to this chapter may not
  223  exceed $300,000 at the beginning of each fiscal year, and any
  224  excess shall be transferred to the General Revenue Fund.
  225         (9) The failure to comply with this section may not be
  226  raised in a proceeding challenging the validity of a rule
  227  pursuant to s. 120.52(8)(a).
  228         Section 3. Subsection (1), paragraph (a) of subsection (2),
  229  paragraph (a) of subsection (3), and subsection (4) of section
  230  120.56, Florida Statutes, are amended to read:
  231         120.56 Challenges to rules.—
  234         (a) Any person substantially affected by a rule or a
  235  proposed rule may seek an administrative determination of the
  236  invalidity of the rule on the ground that the rule is an invalid
  237  exercise of delegated legislative authority.
  238         (b) The petition challenging the validity of a proposed or
  239  adopted rule under this section seeking an administrative
  240  determination must state: with particularity
  241         1. The particular provisions alleged to be invalid and a
  242  statement with sufficient explanation of the facts or grounds
  243  for the alleged invalidity. and
  244         2. Facts sufficient to show that the petitioner person
  245  challenging a rule is substantially affected by the challenged
  246  adopted rule it, or that the person challenging a proposed rule
  247  would be substantially affected by the proposed rule it.
  248         (c) The petition shall be filed by electronic means with
  249  the division which shall, immediately upon filing, forward by
  250  electronic means copies to the agency whose rule is challenged,
  251  the Department of State, and the committee. Within 10 days after
  252  receiving the petition, the division director shall, if the
  253  petition complies with the requirements of paragraph (b), assign
  254  an administrative law judge who shall conduct a hearing within
  255  30 days thereafter, unless the petition is withdrawn or a
  256  continuance is granted by agreement of the parties or for good
  257  cause shown. Evidence of good cause includes, but is not limited
  258  to, written notice of an agency’s decision to modify or withdraw
  259  the proposed rule or a written notice from the chair of the
  260  committee stating that the committee will consider an objection
  261  to the rule at its next scheduled meeting. The failure of an
  262  agency to follow the applicable rulemaking procedures or
  263  requirements set forth in this chapter shall be presumed to be
  264  material; however, the agency may rebut this presumption by
  265  showing that the substantial interests of the petitioner and the
  266  fairness of the proceedings have not been impaired.
  267         (d) Within 30 days after the hearing, the administrative
  268  law judge shall render a decision and state the reasons for his
  269  or her decision therefor in writing. The division shall
  270  forthwith transmit by electronic means copies of the
  271  administrative law judge’s decision to the agency, the
  272  Department of State, and the committee.
  273         (e) Hearings held under this section shall be de novo in
  274  nature. The standard of proof shall be the preponderance of the
  275  evidence. Hearings shall be conducted in the same manner as
  276  provided by ss. 120.569 and 120.57, except that the
  277  administrative law judge’s order shall be final agency action.
  278  The petitioner and the agency whose rule is challenged shall be
  279  adverse parties. Other substantially affected persons may join
  280  the proceedings as intervenors on appropriate terms which shall
  281  not unduly delay the proceedings. Failure to proceed under this
  282  section does shall not constitute failure to exhaust
  283  administrative remedies.
  285         (a) A substantially affected person may seek an
  286  administrative determination of the invalidity of a proposed
  287  rule by filing a petition alleging the invalidity of a proposed
  288  rule shall be filed seeking such a determination with the
  289  division within 21 days after the date of publication of the
  290  notice required by s. 120.54(3)(a); within 10 days after the
  291  final public hearing is held on the proposed rule as provided by
  292  s. 120.54(3)(e)2.; within 20 days after the statement of
  293  estimated regulatory costs or revised statement of estimated
  294  regulatory costs, if applicable, has been prepared and made
  295  available as provided in s. 120.541(1)(d); or within 20 days
  296  after the date of publication of the notice required by s.
  297  120.54(3)(d). The petition must state with particularity the
  298  objections to the proposed rule and the reasons that the
  299  proposed rule is an invalid exercise of delegated legislative
  300  authority. The petitioner has the burden to prove by a
  301  preponderance of the evidence that it would be substantially
  302  affected by the proposed rule of going forward. The agency then
  303  has the burden to prove by a preponderance of the evidence that
  304  the proposed rule is not an invalid exercise of delegated
  305  legislative authority as to the objections raised. A person who
  306  is substantially affected by a change in the proposed rule may
  307  seek a determination of the validity of such change. A person
  308  who is not substantially affected by the proposed rule as
  309  initially noticed, but who is substantially affected by the rule
  310  as a result of a change, may challenge any provision of the
  311  resulting proposed rule and is not limited to challenging the
  312  change to the proposed rule.
  315         (a) A petition alleging substantially affected person may
  316  seek an administrative determination of the invalidity of an
  317  existing rule may be filed at any time during which the
  318  existence of the rule is in effect. The petitioner has the a
  319  burden of proving by a preponderance of the evidence that the
  320  existing rule is an invalid exercise of delegated legislative
  321  authority as to the objections raised.
  324         (a) Any person substantially affected by an agency
  325  statement that is an unadopted rule may seek an administrative
  326  determination that the statement violates s. 120.54(1)(a). The
  327  petition shall include the text of the statement or a
  328  description of the statement and shall state with particularity
  329  facts sufficient to show that the statement constitutes an
  330  unadopted a rule under s. 120.52 and that the agency has not
  331  adopted the statement by the rulemaking procedure provided by s.
  332  120.54.
  333         (b) The administrative law judge may extend the hearing
  334  date beyond 30 days after assignment of the case for good cause.
  335  Upon notification to the administrative law judge provided
  336  before the final hearing that the agency has published a notice
  337  of rulemaking under s. 120.54(3), such notice shall
  338  automatically operate as a stay of proceedings pending adoption
  339  of the statement as a rule. The administrative law judge may
  340  vacate the stay for good cause shown. A stay of proceedings
  341  pending rulemaking shall remain in effect so long as the agency
  342  is proceeding expeditiously and in good faith to adopt the
  343  statement as a rule.
  344         (c) If a hearing is held and the petitioner proves the
  345  allegations of the petition, the agency shall have the burden of
  346  proving that rulemaking is not feasible or not practicable under
  347  s. 120.54(1)(a).
  348         (d)(c) The administrative law judge may determine whether
  349  all or part of a statement violates s. 120.54(1)(a). The
  350  decision of the administrative law judge shall constitute a
  351  final order. The division shall transmit a copy of the final
  352  order to the Department of State and the committee. The
  353  Department of State shall publish notice of the final order in
  354  the first available issue of the Florida Administrative
  355  Register.
  356         (e)(d) If an administrative law judge enters a final order
  357  that all or part of an unadopted rule agency statement violates
  358  s. 120.54(1)(a), the agency must immediately discontinue all
  359  reliance upon the unadopted rule statement or any substantially
  360  similar statement as a basis for agency action.
  361         (f)(e) If proposed rules addressing the challenged
  362  unadopted rule statement are determined to be an invalid
  363  exercise of delegated legislative authority as defined in s.
  364  120.52(8)(b)-(f), the agency must immediately discontinue
  365  reliance upon on the unadopted rule statement and any
  366  substantially similar statement until rules addressing the
  367  subject are properly adopted, and the administrative law judge
  368  shall enter a final order to that effect.
  369         (g)(f) All proceedings to determine a violation of s.
  370  120.54(1)(a) shall be brought pursuant to this subsection. A
  371  proceeding pursuant to this subsection may be consolidated with
  372  a proceeding under subsection (3) or under any other section of
  373  this chapter. This paragraph does not prevent a party whose
  374  substantial interests have been determined by an agency action
  375  from bringing a proceeding pursuant to s. 120.57(1)(e).
  376         Section 4. Paragraphs (e) and (h) of subsection (1) and
  377  subsection (2) of section 120.57, Florida Statutes, are amended
  378  to read:
  379         120.57 Additional procedures for particular cases.—
  382         (e)1. An agency or an administrative law judge may not base
  383  agency action that determines the substantial interests of a
  384  party on an unadopted rule or a rule that is an invalid exercise
  385  of delegated legislative authority. The administrative law judge
  386  shall determine whether an agency statement constitutes an
  387  unadopted rule. This subparagraph does not preclude application
  388  of valid adopted rules and applicable provisions of law to the
  389  facts.
  390         2. In a matter initiated as a result of agency action
  391  proposing to determine the substantial interests of a party, the
  392  party’s timely petition for hearing may challenge the proposed
  393  agency action based on a rule that is an invalid exercise of
  394  delegated legislative authority or based on an alleged unadopted
  395  rule. For challenges brought under this subparagraph:
  396         a. The challenge may be pled as a defense using the
  397  procedures set forth in s. 120.56(1)(b).
  398         b. Section 120.56(3)(a) applies to a challenge alleging
  399  that a rule is an invalid exercise of delegated legislative
  400  authority.
  401         c. Section 120.56(4)(c) applies to a challenge alleging an
  402  unadopted rule.
  403         d. This subparagraph does not preclude the consolidation of
  404  any proceeding under s. 120.56 with any proceeding under this
  405  paragraph.
  406         3.2. Notwithstanding subparagraph 1., if an agency
  407  demonstrates that the statute being implemented directs it to
  408  adopt rules, that the agency has not had time to adopt those
  409  rules because the requirement was so recently enacted, and that
  410  the agency has initiated rulemaking and is proceeding
  411  expeditiously and in good faith to adopt the required rules,
  412  then the agency’s action may be based upon those unadopted rules
  413  if, subject to de novo review by the administrative law judge
  414  determines that rulemaking is neither feasible nor practicable
  415  and the unadopted rules would not constitute an invalid exercise
  416  of delegated legislative authority if adopted as rules. An
  417  unadopted rule The agency action shall not be presumed valid or
  418  invalid. The agency must demonstrate that the unadopted rule:
  419         a. Is within the powers, functions, and duties delegated by
  420  the Legislature or, if the agency is operating pursuant to
  421  authority vested in the agency by derived from the State
  422  Constitution, is within that authority;
  423         b. Does not enlarge, modify, or contravene the specific
  424  provisions of law implemented;
  425         c. Is not vague, establishes adequate standards for agency
  426  decisions, or does not vest unbridled discretion in the agency;
  427         d. Is not arbitrary or capricious. A rule is arbitrary if
  428  it is not supported by logic or the necessary facts; a rule is
  429  capricious if it is adopted without thought or reason or is
  430  irrational;
  431         e. Is not being applied to the substantially affected party
  432  without due notice; and
  433         f. Does not impose excessive regulatory costs on the
  434  regulated person, county, or city.
  435         4.3. The recommended and final orders in any proceeding
  436  shall be governed by the provisions of paragraphs (k) and (l),
  437  except that the administrative law judge’s determination
  438  regarding an unadopted rule under subparagraph 1. or
  439  subparagraph 2. shall not be rejected by the agency unless the
  440  agency first determines from a review of the complete record,
  441  and states with particularity in the order, that such
  442  determination is clearly erroneous or does not comply with
  443  essential requirements of law. In any proceeding for review
  444  under s. 120.68, if the court finds that the agency’s rejection
  445  of the determination regarding the unadopted rule does not
  446  comport with the provisions of this subparagraph, the agency
  447  action shall be set aside and the court shall award to the
  448  prevailing party the reasonable costs and a reasonable attorney
  449  attorney’s fee for the initial proceeding and the proceeding for
  450  review.
  451         5. A petitioner may pursue a separate, collateral challenge
  452  under s. 120.56 even if an adequate remedy exists through a
  453  proceeding under this section. The administrative law judge may
  454  consolidate the proceedings.
  455         (h) Any party to a proceeding in which an administrative
  456  law judge of the Division of Administrative Hearings has final
  457  order authority may move for a summary final order when there is
  458  no genuine issue as to any material fact. A summary final order
  459  shall be rendered if the administrative law judge determines
  460  from the pleadings, depositions, answers to interrogatories, and
  461  admissions on file, together with affidavits, if any, that no
  462  genuine issue as to any material fact exists and that the moving
  463  party is entitled as a matter of law to the entry of a final
  464  order. A summary final order shall consist of findings of fact,
  465  if any, conclusions of law, a disposition or penalty, if
  466  applicable, and any other information required by law to be
  467  contained in the final order.
  470  subsection (1) does not apply:
  471         (a) The agency shall:
  472         1. Give reasonable notice to affected persons of the action
  473  of the agency, whether proposed or already taken, or of its
  474  decision to refuse action, together with a summary of the
  475  factual, legal, and policy grounds therefor.
  476         2. Give parties or their counsel the option, at a
  477  convenient time and place, to present to the agency or hearing
  478  officer written or oral evidence in opposition to the action of
  479  the agency or to its refusal to act, or a written statement
  480  challenging the grounds upon which the agency has chosen to
  481  justify its action or inaction.
  482         3. If the objections of the parties are overruled, provide
  483  a written explanation within 7 days.
  484         (b) An agency may not base agency action that determines
  485  the substantial interests of a party on an unadopted rule or a
  486  rule that is an invalid exercise of delegated legislative
  487  authority.
  488         (c)(b) The record shall only consist of:
  489         1. The notice and summary of grounds.
  490         2. Evidence received.
  491         3. All written statements submitted.
  492         4. Any decision overruling objections.
  493         5. All matters placed on the record after an ex parte
  494  communication.
  495         6. The official transcript.
  496         7. Any decision, opinion, order, or report by the presiding
  497  officer.
  498         Section 5. Subsections (1) and (9) of section 120.68,
  499  Florida Statutes, are amended to read:
  500         120.68 Judicial review.—
  501         (1)(a) A party who is adversely affected by final agency
  502  action is entitled to judicial review.
  503         (b) A preliminary, procedural, or intermediate order of the
  504  agency or of an administrative law judge of the Division of
  505  Administrative Hearings is immediately reviewable if review of
  506  the final agency decision would not provide an adequate remedy.
  507         (9) A No petition challenging an agency rule as an invalid
  508  exercise of delegated legislative authority shall not be
  509  instituted pursuant to this section, except to review an order
  510  entered pursuant to a proceeding under s. 120.56, s.
  511  120.57(1)(e)1., or s. 120.57(2)(b) or an agency’s findings of
  512  immediate danger, necessity, and procedural fairness
  513  prerequisite to the adoption of an emergency rule pursuant to s.
  514  120.54(4), unless the sole issue presented by the petition is
  515  the constitutionality of a rule and there are no disputed issues
  516  of fact.
  517         Section 6. Section 120.695, Florida Statutes, is amended to
  518  read:
  519         120.695 Notice of noncompliance; designation of minor
  520  violation of rules.—
  521         (1) It is the policy of the state that the purpose of
  522  regulation is to protect the public by attaining compliance with
  523  the policies established by the Legislature. Fines and other
  524  penalties may be provided in order to assure compliance;
  525  however, the collection of fines and the imposition of penalties
  526  are intended to be secondary to the primary goal of attaining
  527  compliance with an agency’s rules. It is the intent of the
  528  Legislature that an agency charged with enforcing rules shall
  529  issue a notice of noncompliance as its first response to a minor
  530  violation of a rule in any instance in which it is reasonable to
  531  assume that the violator was unaware of the rule or unclear as
  532  to how to comply with it.
  533         (2)(a) Each agency shall issue a notice of noncompliance as
  534  a first response to a minor violation of a rule. A “notice of
  535  noncompliance” is a notification by the agency charged with
  536  enforcing the rule issued to the person or business subject to
  537  the rule. A notice of noncompliance may not be accompanied with
  538  a fine or other disciplinary penalty. It must identify the
  539  specific rule that is being violated, provide information on how
  540  to comply with the rule, and specify a reasonable time for the
  541  violator to comply with the rule. A rule is agency action that
  542  regulates a business, occupation, or profession, or regulates a
  543  person operating a business, occupation, or profession, and
  544  that, if not complied with, may result in a disciplinary
  545  penalty.
  546         (b) Each agency shall review all of its rules and designate
  547  those for which a violation would be a minor violation and for
  548  which a notice of noncompliance must be the first enforcement
  549  action taken against a person or business subject to regulation.
  550  A violation of a rule is a minor violation if it does not result
  551  in economic or physical harm to a person or adversely affect the
  552  public health, safety, or welfare or create a significant threat
  553  of such harm. If an agency under the direction of a cabinet
  554  officer mails to each licensee a notice of the designated rules
  555  at the time of licensure and at least annually thereafter, the
  556  provisions of paragraph (a) may be exercised at the discretion
  557  of the agency. Such notice shall include a subject-matter index
  558  of the rules and information on how the rules may be obtained.
  559         (c)1. No later than June 30, 2017, and after such date
  560  within 3 months after any request of the rules ombudsman in the
  561  Executive Office of the Governor, The agency’s review and
  562  designation must be completed by December 1, 1995; each agency
  563  shall review under the direction of the Governor shall make a
  564  report to the Governor, and each agency under the joint
  565  direction of the Governor and Cabinet shall report to the
  566  Governor and Cabinet by January 1, 1996, on which of its rules
  567  and certify to the President of the Senate, the Speaker of the
  568  House of Representatives, the committee, and the rules ombudsman
  569  those rules that have been designated as rules the violation of
  570  which would be a minor violation under paragraph (b), consistent
  571  with the legislative intent stated in subsection (1).
  572         2. Beginning July 1, 2017, each agency shall:
  573         a. Publish all rules that the agency has designated as
  574  rules the violation of which would be a minor violation, either
  575  as a complete list on the agency’s website or by incorporation
  576  of the designations in the agency’s disciplinary guidelines
  577  adopted as a rule.
  578         b. Ensure that all investigative and enforcement personnel
  579  are knowledgeable about the agency’s designations under this
  580  section.
  581         3. For each rule filed for adoption, the agency head shall
  582  certify whether any part of the rule is designated as a rule the
  583  violation of which would be a minor violation and shall update
  584  the listing required by sub-subparagraph 2.a.
  585         (d) The Governor or the Governor and Cabinet, as
  586  appropriate pursuant to paragraph (c), may evaluate the review
  587  and designation effects of each agency subject to the direction
  588  and supervision of such authority and may direct apply a
  589  different designation than that applied by such the agency.
  590         (e) Notwithstanding s. 120.52(1)(a), this section does not
  591  apply to:
  592         1. The Department of Corrections;
  593         2. Educational units;
  594         3. The regulation of law enforcement personnel; or
  595         4. The regulation of teachers.
  596         (f) Designation pursuant to this section is not subject to
  597  challenge under this chapter.
  598         Section 7. Paragraph (a) of subsection (4) of section
  599  120.595, Florida Statutes, is amended to read:
  600         120.595 Attorney’s fees.—
  602  120.56(4).—
  603         (a) If the appellate court or administrative law judge
  604  determines that all or part of an agency statement violates s.
  605  120.54(1)(a), or that the agency must immediately discontinue
  606  reliance on the statement and any substantially similar
  607  statement pursuant to s. 120.56(4)(f) s. 120.56(4)(e), a
  608  judgment or order shall be entered against the agency for
  609  reasonable costs and reasonable attorney’s fees, unless the
  610  agency demonstrates that the statement is required by the
  611  Federal Government to implement or retain a delegated or
  612  approved program or to meet a condition to receipt of federal
  613  funds.
  614         Section 8. This act shall take effect July 1, 2016.